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Since we are in Medicare open enrollment (until December 7, 2013), I thought I would mention just a few of the sources available to help beneficiaries with their choices. The National Council on Aging (NCOA), offers My Medicare Matters, which it describes as "education and decision support tools provided by NCOA Services on the My Medicare Matters website and, for those who choose it, personal, one-on-one assistance at no cost from an Aon Hewitt Navigators Benefits Advisor who is a licensed insurance agent."

One of the features of the NCOA website is the MedicareQuickCheck for beneficiaries who are looking to change or add coverage. The "QuickCheck" also helps beneficiaries see about eligibility for low-income assistance. It takes about 10 minutes to do the "confidential questionnaire, [and then] ... receive a free, personalized report that summarizes ... options and ... recommendations... [and] also get guidance on how to connect with a few sources of free, objective assistance to get help comparing and evaluating plans."

On November 19, 2013, DOJ issued a press release announcing a $48 Million settlement for a Medicare False claims case. According to the press release, this settlement "resolve[s] allegations that [the provider] knowingly submitted to Medicare false claims for medically unnecessary rehabilitation therapy services." In addition to the settlement, the press release notes that all of the facilities of the provider are governed by a Corporate Integrity Agreement entered into with HHS' Office of Inspector General. The press release concludes with the statement that "[t]he claims settled by [the] agreement are allegations only; there has been no determination of liability." The case was joint effort between DOJ & HHS.

Naomi Cahn sent me a link of a November 21, 2013 article by Sherri Snelling published in Forbes on Social Media Dangers for the Modern Caregiver. Ms. Snelling, in writing about online etiquette for sharing information related her personal experiences where shortly after her father died, a relative posted this on a social media site. Concurrently, a friend called and when telling her friend about her dad's death, she neglected to tell her friend that this news was confidential. The friend posted about his death online.

As a result, Ms. Snelling writes about being deluged with texts and social media alerts from supportive individuals, but the timing was wrong-she was still coming to grips with her dad's death. She goes on to relate similar experiences of friends, and suggests the use of "three fundamental guidelines for caregivers and their friends." 1. in using social media "[r]emember you’re not just speaking for yourself" and one's comfort level in sharing personal information may be oversharing for others (quoting Naomi on this point). 2. Think about why you are sharing this information and who does it "help" by sharing it? 3. Use social media to make connections, not isolation. Ms. Snelling discusses how social media can provide help and support for caregivers but can also make them feel left out of life's activities. She closes her article with this:

Words can be powerful, especially online, but actions and empathy will always speak louder. Those who really want to support caregivers won’t do it just by posting on social media but by lending a hand and always keeping in mind this old adage: “Great minds discuss ideas; average minds discuss events; small minds discuss people.”

Understanding the expectations of a population cohort could help policymakers determine funding priorities. In "Baby Boomer Caregivers: Care in the Age of Individualization," published in a recent issue of The Gerontologist, Canadian researchers examine "how Baby Boomers in Quebec, Canada, perceive and play their role as caregivers and how this might differ from their parents’ generation." The study highlights the potential for Quebec's history of social services and the modern emphasis on careers for women to impact willingness of family members to assume at-home caregiving roles for spouses or parents:

"Indeed, in Quebec, the Baby Boomers have fully participated in the redefinition of the parental and grandparental structure by involving the (welfare) state as a “partner” in the distribution of services to the family.... Thus, Quebec caregivers like our participants differ from previous generations through the way they assume their caregiver identity as one among many social identities and refuse to define themselves only through their role as a caregiver. They say that they can do so thanks to their integration into the labor market coupled with the existence of public services."

The U.S. may not view itself as being a "welfare state," but is it likely that American Baby Boomers will have similar expectations about supportive social services?

The Senate Committee on Aging has two meetings scheduled for December. The first is on "protecting seniors from medication labeling mistakes" on December 11, 2013 at 2:15 p.m. The second is set for December 18, 2013 at 2:15 and will look at "the future of long-term care policy, focusing on continuing the conversation."

Every year we need to take a look at the new dollar figures for eligibility for a number of means-tested programs, such as SSI and Medicaid. CMS issued a November 22, 2013 memo with the 2014 numbers for Spousal Impoverishment (Minimum Monthly Maintenance Needs Allowance (MMMNA) and Community Spouse Resource Allowance (CSRA)) and SSI. The 2014 numbers can be accessed as a pdf from the Medicaid site here.

"Do Not Hospitalize" is the latest initiative in advance care directives, driven by emerging recognition of the variety of ways that individuals may not be well served by extra-ordinary care measures, requiring specific directions. The concept may require lawyers drafting traditional living wills to think more broadly. Further, the concept highlights the importance of families working directly with physicians who are sensitive to the larger dynamic.

I have to say this one hits home in my own family. My father, after physical health problems combined with larger frailty, declared at age 86, "I would rather die on the steps of the hospital" than spend another night there. That has been hard, at times, for my family to accept.

The New York Times in Judith Graham's "A Misunderstood Directive," provides a back story for the use of DNH orders. Dr. Michael Rothberg describes what occurred after his father-in-law, with severe dementia, was transferred from a care facility to a hospital for evaluation, a move that triggered even greater disorientation and reaction by the man, leading to restraints and medication. The theory of DNH is to provide a reasoned basis not to see hospitalization as the only option for patients, especially those with dementia:

"After another difficult hospitalization, this time for pneumonia, the family decided they didn’t want this vulnerable, distressed relative transferred from the nursing home again if he took ill. They asked that a “do not hospitalize” order be communicated to staff and placed in his medical record. Several months later, the patient stopped eating and drinking and passed away."

Dr. Rothberg and colleagues in Pennsylvania and Massachusetts have collaborated on a paper to describe and evaluate Do Not Hospitalize directives entered into by authorized agents (health care proxies or HCPs) for individuals with advanced dementia. They conclude:

"The potential barriers to and facilitators of HCPs initiating DNH orders identified in this study suggest that HCPs may benefit from more in-depth discussions with healthcare providers when making this decision. Interventions to address these barriers may improve the capacity of HCPs to make informed decisions about DNH orders that reflect individuals' values and wishes."

It's well known that the brains of meditators change, but it's not entirely clear what those changes mean or how the changes might benefit the meditator. A new pilot study led by researchers at Beth Israel Deaconess Medical Center suggests that the brain changes associated with meditation and stress reduction may play an important role in slowing the progression of age-related cognitive disorders like Alzheimer's disease and other dementias.

"We know that approximately 50 percent of people diagnosed with mild cognitive impairment – the intermediate stage between the expected declines of normal aging and the more serious cognitive deterioration associated with dementia – may develop dementia within five years. And unfortunately, we know there are currently no FDA approved medications that can stop that progression," says first author Rebecca Erwin Wells, MD, MPH, who conducted her research as a fellow in Integrative Medicine at BIDMC and Harvard Medical School. "We also know that as people age, there's a high correlation between perceived stress and Alzheimer's disease, so we wanted to know if stress reduction through meditation might improve cognitive reserve."

The results of the study appeared online October 10 in Neuroscience Letters. Wells, currently a neurologist at Wake Forest Baptist Medical Center in Winston-Salem, N.C. evaluated adults between the ages of 55 and 90 in BIDMC's Cognitive Neurology Unit. 14 adults diagnosed with mild cognitive impairment were included in the study. Participants were randomized two to one either to a group who participated in Mindfulness-Based Stress Reduction (MBSR) using meditation and yoga, or a control group who received normal care. The study group met for two hours each week for eight weeks. They also participated in a day-long mindfulness retreat, and were encouraged to continue their practice at home for 15 to 30 minutes per day.

All participants underwent a functional MRI (fMRI) at baseline and then again after eight weeks to determine if there were any changes in the structures of the brain or in brain activity. The neuroimaging was conducted at Massachusetts General Hospital's Martinos Center. "We were particularly interested in looking at the default mode network (DMN) – the brain system that is engaged when people remember past events or envision the future, for example – and the hippocampus – the part of the brain responsible for emotions, learning and memory – because the hippocampus is known to atrophy as people progress toward mild cognitive impairment and Alzheimer's disease," says Wells. The results of fMRI imaging showed that the group engaged in MBSR had significantly improved functional connectivity in the areas of the default mode network. Additionally, as expected, both groups experienced atrophy of the hippocampus, but those who practiced MBSR experienced less atrophy.

After P.S. Ramachandran turned 80, he and his wife decided it was time to stop living alone. Rather than take the traditional path of moving in with their son, the Ramachandrans chose an option once rare in India: a retirement community. “We wanted to be independent,” said Ramachandran, now 85, a former government official who moved to the Brindavan Senior Citizen Foundation’s retirement village overlooking the Nilgiri hills near Coimbatore city in southern India. “We have company and everything we need here, and activities to keep us busy as long as we’re physically able.”

Rising wealth from the region’s rapid growth in recent decades is changing the way many Asians grow old, breaking up the traditional family unit as children move to the cities or go abroad in search of better-paid jobs. The change is a new source of business for companies from India’s Tata Housing Development Co., Malaysia Pacific Corp. and Singapore’s ECON Healthcare Group, which are constructing retirement villages for the wealthy that offer cafes, tennis courts and yoga. The developers are following companies from adult-diaper makers to holiday operators that have swooped in on Asia’s silver economy, catering to the region’s growing cohorts of over-60s.

Excluding Japan, the market will be worth about $2 trillion by 2017 -- more than the current Indian economy -- according to Singapore-based market researcher Ageing Asia Pte. Filial Piety “Filial piety is still big in Asia, but it has less of a role now,” said Janice Chia, founder and managing director at Ageing Asia. “My grandparents were satisfied with staying home, watching a bit of TV, walking in the park and looking after the grandkids. But my parents want to travel, keep their minds active and don’t necessarily want to live with their children.”

Background: A Pennsylvania poll-watcher challenged a number of absentee ballots cast by residents of a nursing home in the November 5 election, reportedly on the grounds that "various types of handwriting" appeared on the voters' applications to vote by absentee ballot or on the envelopes they used to cast the absentee ballots. Of course, absentee ballots may be important for individuals unable to travel easily to the polls.

Under Pennsylvania law, voters are entitled to notice and an opportunity to contest the challenge before the county Election Board. However, apparently none of the residents at Broomall Rehabilitation and Nursing Center were notified of the November 11 Election Board hearing, although a "subpoena was delivered to a member of the nursing home staff by a Pennsylvania constable," according to the Daily Times. The Election Board then ruled 2 to 1 in favor of the Republican poll-watcher's challenge on ballots by 61 of 67 residents of the nursing home, with the vote splitting along party lines.

Ultimately, 14 of the residents then retained an attorney and filed a formal court appeal, resulting in the ruling in their favor. They did not, however, testify or even appear at the court hearing, which apparently focused on procedural errors in the ballot challenge.

I would like to think that someone on the defense side of the case had a moment of pause, when they learned the judge assigned to the case was a senior judge. In my experience, senior judges are not terribly receptive to arguments that appear to presume a lack of mental capacity based on age. On the other hand, I suppose one could also ask why ALL of the residents who cast challenged absentee ballots were not a part of the court appeal?

Humanitude, a caregiving method developed in France that emphasizes eye contact, touch and verbal communication to convey respect for the patient as a human being, is gaining attention in Japan for treating patients with dementia. Tokyo Medical Center in Meguro Ward, one of the hospitals adopting the Humanitude method, provides seminars for caregivers to expand its use. In a videotape shown at one such seminar, two nurses took a female patient with dementia to a shower. One nurse approached the woman from the front, looked at her at eye level and kept speaking to her gently while the other nurse washed her body with warm water.

The woman in her 70s, who was said to have screamed and refused to take a shower, was cooperative and remained calm, and even said that “the water temperature feels good.” The approach, with its name deriving from “human” and “attitude,” was developed about 30 years ago by Yves Gineste, who taught physical education, and his colleagues based on the philosophy of “what is humanity.”

The four basic pillars in the method are to look into the eyes of the patients, talk to, touch and help them stand upright. More specifically, particularly for elderly people with dementia, this means approaching from the front to avoid startling the patients, who tend to have a narrow range of vision; looking at them at eye level; telling them the procedures being conducted even if there is no response; avoiding gripping the patients’ wrists from above; and helping them stand upright or walk. There were remarkable scenes in the videotape that were taken in February last year when Gineste visited Tokyo Medical Center.

I suspect that headline got your attention, right? Before you starting questioning my sanity, the idea -- and the reasons -- are offered by none other than Nobel-prize-celebrated economist Paul Krugman in his New York Times editorial, "Expanding Social Security." Here's a taste: "America’s overall retirement system is in big trouble. There’s just one part of that system that’s working well: Social Security."

Update: By coincidence, at almost the same time I posted the original link to Krugman's editorial, Blogging Colleague Becky Morgan posted a piece about "70" potentially being a better age to begin full retirement benefits, linking to a report from the Center for Retirement Research at Boston College. Krugman addresses the "70-is-better-because-people-are-living-longer" argument, pointing to a disparate impact on those with low income and less education, who have not seen a significant rise in life expectancy. Useful point/counterpoint materials for discussion, perhaps.

According to an October 2013 brief from the Center for Retirement Research at Boston College, 70 is the number....at least for when to start drawing Social Security. Alicia Munnell authored the brief, Social Security's Real Retirement Age is 70.

The brief provides an overview of the full retirement age (FRA) (formerly 65) and suggests that

70 has become the new 65. Moreover, the level of monthly benefits at 70 appears appropriate given the increased deductions for Medicare premiums, the greater taxation of benefits, the declining importance of the spouses’ benefit, and the diminished sources of other retirement income...

The report approaches the issues this way: (1) how 70 became the "new 65" for Social Security; (2) is 70 the "right" age when compared to 65, longevity, etc.?; (3) the replacement rates for various ages; (4) FRA "no longer describes the benefit structure; further increases in this benchmark simply reduce replacement rates"; and (5) three conclusions.

In examining the age 70, the report does some interesting comparisons and analysis, including how age 70 today compares to age 65 in 1940, the impact of life expectancy on a person's financial and societal status, and any correlation between 70 and real retirement activities. (pgs. 2-5)

If you cover Social Security retirement in your classes, read this report!

A fascinating article in The Gerontologistanalyzes Naturally Occurring Retirement Communities (NORCs) and a similar community-based model for aging in place, known as the Village. Frankly, it was only recently that I realized these labels may be used for developments with different identities.

Researchers in social work, welfare and public health programs at Rutgers, Berkeley, Michigan, and Maryland surveyed program leaders representing 69 Villages and 62 NORCS in early 2012, gathering data on services, activities, beneficiaries and funding sources.

The article also identified topics for further study, including the potential for longitudinal studies. Regional differences may also exist. "For example, NORC programs in New York likely differ in some ways from NORC programs nationally, given different organizations overseeing their development, . . . as well as distinct public policies defining the programs and eligibility criteria."

As a bit of history, Beacon Hill Villagein Boston was begun in 2001 by a group of seniors who wanted to remain at home as long as possible in their neighborhood. An early model for NORCs is widely attributed to a co-op in New York City, begun in 1986 with support from private philanthropy and local government funding.

Late November is often a time for gatherings with family and friends – Thanksgiving and Hanukkah, soon followed by Christmas and the New Year. Nursing home residents often want to participate in these gatherings but may worry that they will lose Medicare coverage if they leave the facility to do so. Residents and their families can put their minds at ease. According to Medicare law, nursing home residents may leave the facility for holidays without losing their Medicare coverage. However, depending on the length of their absence, beneficiaries may be charged a "bed hold" fee.

The Medicare Benefit Policy Manual recognizes that although most beneficiaries are unable to leave their facility, "an outside pass or short leave of absence for the purpose of attending a special religious service, holiday meal, family occasion, going on a car ride, or for a trial visit home, is not, by itself evidence that the individual no longer needs to be in a SNF for the receipt of required skilled care."

A facility should NOT notify patients that leaving the facility will lead to loss of Medicare coverage. The Medicare Benefit Policy Manual says that such a notice is "not appropriate."

For the past several days, I’ve been in Korea at the invitation of Prof. Je Cheol Ung, who is Professor of Law at Hanyang University in Seoul. I’ve had the opportunity to speak with Korean experts about Korean’s new guardianship law, teach first year law students a bit about elder law, and participate in an important conference sponsored by the Korea Association on Comparative Private Law on the implementation of the new law. My hosts have been wonderful, and I’ve been deeply impressed by the commitment of academics, lawyers, judges, and advocates working for the rights of those in Korean society who have disabilities. Seoul is a fabulous city–to be honest, I had no idea I would like it so much. It has been a great trip, and I hope I will have the opportunity to visit again soon.

Today, I meet Prof. Ko Se-Il, from Pai Chai University in Daejeon, who is attending the conference. I was thrilled to learn that he is a regular reader of the Elder Law Prof Blog! I was very happy to know that the reach of the Blog extends to our colleagues on the other side of the world. Prof. Ko, thanks for passing along that information! We’ll try to keep things interesting for you and your colleages.

The combo seemed to work well, giving students a chance to revisit a number of issues from the semester. For, example, we talked about the role of an attorney in advising family members. In the Irving case, did either the daughter or the son have legal advice (the same lawyer?) regarding the roles they took when their mother was admitted to the nursing home? If anyone would like my outline of questions for students on these two documents, feel free to email me.

And if any of you have a great way to end the semester in either Elder Law or Wills, Trusts & Estates, please share!

Innovations adopted and accelerated by the 2010 Affordable Care Act will continue to force down overall Medicare costs, according to industry analysts and studies, even as the economy continues to improve. Those changes include new payment plans, improved efficiency and a move toward consumer-driven insurance plans that started before the law’s passage. They influenced the $618 billion drop in projected Medicare and Medicaid spending over the next decade that was reported May 15 by the Congressional Budget Office. That report showed that costs for the two programs in 2012 were 5 percent less than projected in early 2010, and the CBO data are expected to foreshadow the spending projections in the annual Medicare trustees report scheduled to be released this week. That slowdown could continue, said Michael Chernew, a health care policy professor at Harvard Medical School. Health spending grew about 3 percent a year from 2009 to 2011, Chernew said, a drop from the average 6 percent annual growth the previous decade. Some of that, he said, was because of the economic crisis that started in 2008. But an analysis of health costs for employees of large corporations showed per-employee health spending also decreased.

Somehow I had missed this particular incarnation of predatory lending. The National Consumer Law Center (NCLC) recently circulated a consumer impact statement on pension-based loan scams. Often advertised as "cash advances," in reality the individual is agreeing to assign future pension payments to the lender, with repayment terms that include an outrageously high interest rate. In 2011, NCLC and attorneys with the National Association of Consumer Advocacy were successful in a class action suit in state court in California, in which they challenged loans requiring "assignments" of military pay or pensions as violating federal law. The court ordered restitution to the class members.

The New York Times ran a 2013 feature on "Loans Borrowed Against Pensions Squeeze Retirees," by Jessica Silver-Greenberg, part of a series on "A Vulnerable Age," that examined financial traps that can face older adults, especially during a tight economy. A sidebar to the article detailed an example of a loan to a disabled military veteran for $10,000, with a $353 monthly payment for 60 months, leading to total costs over the life of the loan of $21,180, representing an interest rate of 36.4%.